International Divorce and Aftermath: Issues in the Case of Divorce between a Japanese and Foreign National〔水野健司特許法律事務所〕

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2016年12月1日
International Divorce and Aftermath: Issues in the Case of Divorce between a Japanese and Foreign National

Over the past decade, the number of international marriages in Japan has escalated. Reported marriages in which one of the spouses is a non-Japanese national has piled up. Unfortunately, the sharp escalation in the number of marriages involving a Japanese national and a non-Japanese national have also led to increases in divorces between such couples. Such trend has surfaced many serious cases particularly child-related issues.
Getting a divorce is usually a very traumatic experience for both parties. Before initiating a divorce, it is important to identify and take a look at some key issues you may need to be aware of so you can better be well informed and be prepared before starting the divorce procedure.
 
Jurisdiction: The statutory law in Japan contains no provisions concerning the jurisdiction of a Japanese court in cases concerning international marriages. The courts have held that the Japanese Family Court has jurisdiction over a divorce if at a minimum at least one party is a legal resident of Japan. The Court might exercise a discretion not to accept jurisdiction in certain cases where the parties are not significantly connected to Japan.
 
Division of Marital Assets
 
Marital assets existing at the time of separation are subject to division upon divorce. Pursuant to Article 768 of the Civil Code of Japan, the Family Court has jurisdiction to divide the assets of the parties if a party in a divorce case files an auxiliary complaint asking the Court to exercise its jurisdiction to do so and if the parties are unable to agree on such matters. Article 768 (3) of the Civil Code provides the Family Court with an extremely broad discretion in exercising its jurisdiction. The Japanese courts general principle is properties acquired by the husband and wife during a marriage should be equally divided when the marriage ends.
 
Child Custody and Parental Authority
 
To determine matters regarding Child Custody after Divorce, Article 766 of the Civil Code states that (1) If parents divorce by agreement, the matters of who will have custody over a child, visitation, and other contacts between the father or mother and the child, sharing of expenses required for custody of the child and any other necessary matters regarding custody over the child shall be determined by that agreement. In this case, the child’s interests shall be considered with the highest priority; (2) If the agreement set forth in the preceding paragraph has not been made, or cannot be made, the matters set forth in the preceding paragraph shall be determined by the family court; (3) The family court may change the agreement or determination under the provisions of the preceding two paragraphs and order any other disposition regarding custody over the child, if it finds this necessary.
In other words, custodial parent can ask non-custodial parent for payment of monthly child support. If parents cannot agree on the amount of child support, the custodial parent can ask the family court to determine the amount of monthly child support and to order the non-custodial parent to pay that amount to the custodial parent.
 
In Japan, only one parent is allowed to maintain custody after a divorce. Child custody is almost equal to parental authority. According to Article 819 of the Civil Code: (1) If parents divorce by agreement, they may agree upon which parent shall have parental authority in relation to a child; (2) In the case of Judicial Divorce, the court shall determine which parent shall have parental authority; (3) In the case where parents divorce before the birth of a child, the mother shall exercise parental rights and duties, provided that the parties may agree that the father shall have parental authority after the child is born; (4) A father shall only exercise parental authority with regard to a child of his that he has affiliated if both parents agree that he shall have parental authority; (5) When the parents do not or cannot, make the agreements, the family court may, at the request of either the father or the mother, make a ruling in lieu of agreement; (6) The family court may, at the request of any relative of the child, rule that the other parent shall have parental authority in relation to the child if it finds it necessary for the interests of the child.
Parental authority includes various parental right and duty of care and education. Article 820 of the Civil Code of Japan provides that “a person who exercises parental authority holds the right, and bears the duty, to care for and educate the child for the child’s interests.
 
Visitation & Child Support
 
As mentioned above, Article 766 of the Civil Code states that (1) If parents divorce by agreement, the matters of who will have custody over a child, visitation, and other contacts between the father or mother, shall be determined by that agreement; (2) If the agreement set forth in the preceding paragraph has not been made, or cannot be made, the matters set forth in the preceding paragraph shall be determined by the family court. That is to say, non-custodial parent can ask custodial parent to let him/her see the children regularly. If the parties cannot agree whether the non-custodial parent should see the children or frequency, length, and mode of visitation, non-custodial parent can request the court to decide for them.
Child support is the expenses required to raise the minor child until he or she becomes independent as an adult. There are ways to calculate child support. One of which is through the use of standard table of child support calculations for the speedy and fair calculation of child support. The table will determine child support obligations based upon the income levels of the parents, whether the income is salary or self-employment, and the age and number of children. The table is being used in the Japanese family courts and judges abide by the standard.
 
Foreign Spouse Visa Status after Divorce
 
After divorce, the foreign national spouse is no longer qualified and will lose the residential status “spouse of a Japanese national.” The old immigration law will assert that the foreign national is still eligible to stay in Japan until the printed date on which that last-issued spousal status of residence expires. However, recent updates to the immigration laws clearly states that: when officially divorced from a Japanese spouse, within 14 days of divorce, the foreign national is obligated to report the divorce to the Immigration Bureau and shall apply for a change of status of residence if there’s an intention to stay in Japan. An extra time will be given to divorce individuals to arrange an application for a change in status of residence.
 
Since the foreign national is no longer a spouse of a Japanese national but wishes to stay in Japan, change of residential status to an appropriate one shall be made.
 
  1. Working Visa – If the qualifications match any of Engineer / Specialist in Humanities / International Services working visa categories and can find a job under this category.
 
  1. Long Term Resident – If a divorced foreign national spouse is the one who raise the child who is a Japanese national, this type of visa might be granted for the reason it is considered as “special situation.” Holding this type of visa is similar to holding a spouse of Japanese national visa and can engage in any type of work.
 
Failure to report the divorce and failure to apply for a change in status of residence may result in revocation of the status of residence or other serious consequences.
 
Going through a divorce can be very difficult and emotional, Mizuno Kenji Patent and Law is here to help you and serve you with personalized and professional service. We will guide you through the legal process and assist you find the right solutions and amicable agreement in the best interests of you and your family.
Should we be of further assistance, please feel free to contact us at: info@patent-law.jp
 
References:
 
  1. Japanese Law Translation. www.japaneselawtranslation.go.jp
  2. International Marriages in Japan. ww.davidappleyard.com/japan/
  3. Global Communications Platform: On Divorces Involving a Non-Japanese Spouse. www.glocom.org
  4. Japanese Civil Code: Unofficial Translation of Book IV, Relatives. www.international-divorce.com
 
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